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March 23 — The U.S. Supreme Court appeared evenly divided on religious charities'
and universities' efforts to get an exception from the Affordable Care Act's contraception mandate (Zubik v. Burwell, U.S., No. 14-1418, argued 3/23/16).

Even though the Obama administration has crafted a work-around for those religious nonprofits, the groups say it doesn't go far enough. It still requires them to facilitate the provision of birth control methods to their employees or students, which they find morally objectionable, they argue.

As is frequently the case, Justice Anthony M. Kennedy's vote is key, and he seemed to agree that the work-around makes the religious groups complicit in the provision of contraceptives.

The federal government is “hijack[ing]”
the groups' plans so that the government can provide the contraceptives, he said.

Even if the Supreme Court disagrees—and says the burden is substantial—that isn't the end of the analysis for the federal government.

Under RFRA, the government can still enforce the law if it is the least restrictive way to advance a compelling government interest.

Kennedy gave few hints during oral argument on his thinking on this part of the law.

With Justice Antonin Scalia's seat still vacant, the court could easily split 4–4.

‘Can't Be All My Way.'

The Religious Freedom Restoration Act's protections for religious exercise, at 42 U.S.C. § 2000bb et seq., are only triggered if the government “substantially burden[s]” that exercise.

“No one doubts for a moment the sincerity of the belief of” the religious groups, Justice Ruth Bader Ginsburg said. That's “off the table.”

So the government came up with what it thought was a reasonable accommodation that doesn't put a substantial burden on that sincere belief, she said.

As “in all things, it can't be all my way,” Ginsburg said. “There has to be an accommodation.”

The accommodation the federal government came up with for religious groups requires that they provide their insurance companies or the federal government with a form noting the groups' objections to providing the FDA-approved contraceptives. In some cases, the groups must also provide information about their insurance companies.

The government then contracts with a third party to provide the contraceptives at no cost to the religious groups, U.S. Solicitor General Donald B. Verrilli Jr. explained on behalf of the federal government.

“But that's not what's going on here,” Chief Justice John G. Roberts Jr. said. The government isn't dealing with a third party, they are using the insurance company that the religious groups have hired to provide insurance coverage to their employees and students.

“The objection is that the government is hijacking their process, their insurance company,” to provide coverage to contraceptives they find morally objectionable, Roberts said.

The federal government doesn't question the religious groups' belief that they're complicit in the moral wrong, Verrilli said.

“Well, then it seems to me that that's a substantial burden,” Kennedy interjected, suggesting that the government couldn't second-guess the groups' beliefs.

Where's the Line?

But being a member of society means that sometimes a religious person has “to accept all kinds of things that are just terrible for him,” Justice Stephen G. Breyer said.

“Think of the Quakers who object to Vietnam,” Breyer said. “Think of the people who object to laws protecting blasphemy. Think of the people who object to shoveling the snow in front of the walk that will lead to the abortion clinic.”

“Why do the Quakers have to pay the taxes for Vietnam,” but other religious groups get a pass, Breyer wanted to know. “What's the line?”
he asked.

Paul Clement, of Bancroft PLLC, Washington, arguing for the religious groups, said that most of the line-drawing work was done by the “second half”
of RFRA's test—that is, whether the law is the least restrictive way to further a compelling government interest.

Who Does the Paperwork?

Verrilli said the Obama administration's work-around clearly passes that test.

The government has a compelling interest in ensuring that women have access to contraceptives, he said. And the work-around is the least restrictive way to do that without impinging on the religious group's rights, he said.

The way the accommodation is structured is that the religious groups don't “bear any financial burden for the contraceptives coverage that has to be provided”—the funds and all activity relating to the contraceptives are segregated, Verrilli said.

“If it's so easy to provide, if it's so free, why can't [the women] just get it through another plan?” Kennedy asked.

“The whole point of this provision was to ensure that people who got health insurance would get the preventative services as part of their regular care from their regular doctors with no barriers,” Verrilli said.

Even small barriers like a $5 or $10 co-pay “work as a sufficient disincentive that many fewer people use contraception than would otherwise,” Verrilli said. Requiring women to get a second insurance policy to cover contraceptives “imposes a significantly greater barrier,” he added.

The government's compelling interest then, isn't that woman obtain contraceptive services, Roberts said. The “compelling interest is that women obtain the contraceptive services through the insurance plan” hired by the religious groups, he said.

“So it comes down to a question of who has to do the paperwork,” Roberts said.

Packing It in

Regardless of how the government's interest is framed, the law's exceptions undermine the government's position that the interest is compelling and that the work-around is the least restrictive way to carry out that interest, Noel Francisco, of Jones Day, Washington, who also argued on behalf of the religious groups, said.

He noted that there are exemptions from the contraception mandate for “grandfathered plans,” small businesses and for churches themselves.

Lots of laws have similar exemptions, Justice Sonia Sotomayor noted.

Title VII exempts small business from its requirements, not because the federal government thinks racial discrimination isn't important, but because it “can't do everything,” she said.

If “somebody could come in and say, well, the government must not really believe in this law because there is an exception to it,” then “we might as well pack it all in,” Justice Elena Kagan said. “There's not a law in town that doesn't have exceptions like that.”

“You would be saying to Congress, Congress, next time you pass a law, don't put in an exemption for churches; you're going to get in real trouble doing that,”
Kagan said. “Don't write exemptions for small businesses, even though there are very particular concerns that businesses face; you're going to get in trouble for that.”

“Now, those are terrible incentives to give a legislature,” Kagan said.

Kennedy agreed. “I just find that very difficult to write,” he said.

Evenly Split

If Kennedy sides with the religious groups, a 4–4 decision would likely result.

That would affirm the decisions below, which upheld the government's work-around, but it wouldn't be binding on other courts.

One circuit—the U.S. Court of Appeals for the Eighth Circuit—has already gone the other way and invalidated the work-around, and others could do so in the future without a definitive decision from the Supreme Court.

To avoid such a patchwork in the enforcement of the Affordable Care Act, the court could hold the case over until next term, and rehear the case when it has a full bench.

A decision one way or the other is expected by the end of June.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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